Judgment :- 1. This second appeal raises two nice questions relating to the law of execution. The decree is one passed on foot of a hypothecation bond executed by Defendants 1 and 2 and the decree directed realization of the amount by sale of the hypotheca and personally from the two defendants. While the decree was being executed, but before any amount was realized thereunder, Defendant 1 died and the decree-holder (respondent herein) brought the present appellant and his younger brother on the record as legal representatives. The appellant disputed the right of the decree holder to sell certain items comprised in the hypotheca on the ground that under a partition arrangement evidenced by Ext. 1, dated 1.8.1100, Defendant 1 had divested himself of all interests in those items and that his (the appellant's) younger brother and himself had long become the absolute owners thereof when the suit was brought ten years afterwards in 1100. Accordingly it was contended that the northern one-half of item 1 and items 2 to 5 of the decree could not be proceeded against in execution as the decree-holder obtained the decree without the real owners of those items on the record. The execution Court repelled the objection on grounds which are really untenable. That Court stated that as these items stood charged for the debt and since the partition deed admitted the debt the objection cannot be sustained. The present appellant preferred an appeal before the Kottayam District Court against that order and the learned Second Judge of that Court who heard it upheld the objection with respect to items 1,2, 4 and 5. As regards item 3 the learned judge held that that item was not allotted to the appellant or his brother under the partition arrangement referred to. The present second appeal relates to the lower appellate Court's order regarding item 3. The decree-holder has preferred a memorandum of cross objections challenging the lower appellate Court's decision regarding items 1, 2, 4 and 5. The objection which the appellant raised before the execution Court is therefore before us in its full form. 2. The only question raised for decision by the appeal is whether item 3 also went to the share of the appellant and his brother under the partition deed, Ext. 1. Mr. P.H. Sankaranarayana Iyer, the learned counsel for the decree-holder-respondent, however raised two nice questions. 2. The only question raised for decision by the appeal is whether item 3 also went to the share of the appellant and his brother under the partition deed, Ext. 1. Mr. P.H. Sankaranarayana Iyer, the learned counsel for the decree-holder-respondent, however raised two nice questions. One was that the second appeal itself was incompetent and the other was that the legal representative of a deceased judgment-debtor could not in execution proceedings set up a paramount or independent title to the properties directed to be sold by the decree. It is convenient to deal with the second question first, but it may be stated here and now that we cannot accede to the first point. We shall state the reasons later. For obvious reasons to uphold the preliminary point will be more harmful to the respondent than to the appellant. If the second appeal is incompetent so will be the memorandum of cross objections. 3. The point that where a decree for sale of mortgage property is passed against a mortgagor and on his death, his legal representative is brought on record, an objection that the property belonged to the legal representative (and not to the mortgagor) cannot be enquired into by the execution Court was raised in this case for the first time when the second appeal was heard. Even the memorandum of cross objections did not refer to this point. However as it is a pure question of law we allowed that to be raised and heard arguments from both sides with reference to it. 4. There is almost unanimity of opinion among the various High Courts in India that to permit such an objection to be entertained by the execution Court will be to permit that Court to question the validity of the decree itself and that such a question does not pertain to execution, discharge or satisfaction of the decree was envisaged by S.47 Civil P.C. It is well settled law that the Court executing a decree could not go behind the decree nor question its correctness. There is also the rule that all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. There is also the rule that all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Decisions bearing on the point virtually effect a reconciliation of these two view points. 5. The earliest case where we get a clear enunciation of the principles applicable is Sanwal Das v. Bismillah Begam - (1897) I.L.R. 19 All. 480 What Sir John Edge, C.J. and Blair, J. said in that case have repeatedly been quoted in subsequent decisions bearing on the point and the relevant portion of the judgment reads as follows: "If there is one point on which we believe there is general concurrence of opinion in the High Courts of India, it is that a Court executing a decree cannot take upon itself to alter or vary that decree. Its powers are confined to construing a decree when necessary and executing a decree in its terms so long as the law allows the decree to be executed. There is an essential difference between the execution of a decree for money by the sale of the property and the execution of a decree for sale of property specified in the decree. In the first case any third person can intervene in the execution of a decree and show that the decree could not be executed against particular property, if that property was not the property of the judgment-debtor, but was the property of the person opposing. Similarly in the case of a decree for money, where the judgment debtor dies, his representative is entitled to oppose the execution of the decree against any particular property by showing that property was not the property of the judgment-debtor and was the property of the representative, as for example that it was his self-acquired property. That course can be taken by a stranger or a representative in execution of a decree for money for this reason, that a decree for money is not based upon any adjudication that the particular property or in fact any property, which may subsequently be brought to sale in execution of the decree, was the property of the judgment-debtor, or property which would be liable to his debts. Consequently when such objection is taken before the Court executing a decree for money, that Court has power to inquire into and decide on any such objection taken to the execution of the decree against any particular property. Where however, the decree is a decree for sale under the Transfer of Property Act, the Court executing the decree must sell the property decreed to be sold and leave any one objecting to the execution of the decree against that particular property to such remedy as he may have by a suit or by resistance to the possession of the purchaser". 6. A Division Bench of the Calcutta High Court took the same view on this question in Ganesh Prasad Bhagat v. Sakhina Bibi 1912 (14) IC 7. There a mortgage decree was obtained against a mortgagor. He died and his widow was brought on the record as his legal representative. She put forward a claim that she was entitled to the property independently of her husband for whom she was substituted, and under a title derived from her father and her uncle, and she prayed that the property should be exempted from execution sale. It was held that the claim could not be made under S.47 Civil P.C. because if the claim is taken to be one under S.47, it is a claim for deduction of something from the decree. The judgment proceeded to state that the decree was made in respect of the mortgaged property and it could not be withheld from execution without in so far nullifying the effects of the decree, a course which was not open to the legal representative under S.47 to adopt. 7. In the Madras High Court there was some conflict of opinion on the point but that was set at rest by the Full Bench decision reported as Hamidgani v. Ammasahib AIR 1941 Mad. 898. Sir Lionel Leach, C.J. (with whom Krishnaswami Ayyangar and Chandrasekhara Ayyar, JJ. concurred) reviewed practically all the earlier decisions of that Court and stated as follows at pp. 902 and 903 of the report: "When a person comes into Court in execution proceedings as the legal representative of a deceased party he cannot question the decree which has been passed. If the decree concerns property in which he claims an interest, the decree will not be binding upon him unless he was a party to the suit. 902 and 903 of the report: "When a person comes into Court in execution proceedings as the legal representative of a deceased party he cannot question the decree which has been passed. If the decree concerns property in which he claims an interest, the decree will not be binding upon him unless he was a party to the suit. If he was not a party to the suit or, as in this case, he had been dismissed from the suit, his rights will be entirely unaffected and he will be in a position to enforce them in a suit instituted by him for that purpose. S.47 Civil P.C., only requires to be decided in execution proceedings those questions which arise between parties to the suit in which the decree has been passed or their representatives and which relate to the execution, discharge or satisfaction of the decree. Where a stranger to the suit claims as his, immovable property which has been the subject-matter of a decree, that claim cannot in law be regarded as being a question relating to the execution, discharge or satisfaction of the decree. There are decisions of this Court to the effect that in execution proceedings arising out of money decrees questions relating to the property attached must be decided in execution proceedings and not by a separate suit, but this is an entirely different matter because the correctness of the decree is not called into question. Therefore, the correctness of such decisions does not arise. We are here dealing with a case where it is said that a person who is not a party to the suit, but is brought into court in execution proceedings as the legal representative of a deceased party, can in those proceedings be allowed to challenge the decree and if he fails to do so he has for ever lost the right claimed by him in the suit property. Obviously the answer must be that he cannot in execution say the decree is wrong, and he has his remedy by suit". 8. The decision in Nayanim Varu v. Rama Naidu A.I.R. 1950 Mad. 47 cited at the Bar followed this Full Bench ruling. 9. The Lahore, Patna and Rangoon High Courts also hold the same view. See Lloyds Bank Ltd. v. Rehmat Bibi A.I.R. 1939 Lah. 8. The decision in Nayanim Varu v. Rama Naidu A.I.R. 1950 Mad. 47 cited at the Bar followed this Full Bench ruling. 9. The Lahore, Patna and Rangoon High Courts also hold the same view. See Lloyds Bank Ltd. v. Rehmat Bibi A.I.R. 1939 Lah. 178; Jatru Pahan v. Ambikajit Prasad A.I.R. 1946 Patna 214 and Ramaswamy Chettyar v. U Tun Tha A.I.R. 1940 Rang. 161. The Patna and Rangoon cases quote with approval extracts from the decision in (1897) I.L.R. 19 All. 480. In the Lahore High Court conflicting opinions were expressed by different judges sitting as Single Judges and the decision in A.I.R. 1939 Lah. 178 reversed in Letters Patent Appeal, Lloyds Bank Ltd. Lahore v. Rehmat Bibi A.I.R. 1939 Lah. 51, one of the Lahore cases brought to our notice by the appellant's learned Counsel. In view of the Division Bench ruling it is unnecessary to refer to the other Single Bench decisions of that Court cited at the Bar. 10. The Cochin and the Travancore High Courts also took the same view of the question now under discussion. One of us was a party to the relevant Cochin case Parieth v. Vasudevan Namburipad (1124) 40 Cochin 341. Sir C.V. Anantakrishna Ayyar, C.J. who delivered the judgment in that case reviewed practically all the important decisions bearing on the point and said that the legal representatives of a deceased judgment-debtor could not in execution proceedings raise the contention that the properties directed to be sold by the decree are their own private personal properties and could not be sold. In the case in Parameswaran Pillai v. Gopala Pillai (1941) 31 T.L.J. 575, Nokes and Sankarasubba Iyer, JJ. laid down the same rule. The decision in A.I.R. 1939 Lah. 178 is followed there. 11. It is now clear that the second point raised by the respondent's learned Counsel is well supported on authorities and we do not find any justification to take a different view. Nor do we think we should re-state the reasons for the view which, if we may say so with respect, are ably set out in the extracts quoted earlier and in the several decisions cited in this judgment. However before we part with this point reference has to be made to the decision in Moppen Vava Srank Usmal v. Nariyalwala (1913) 3 T.L.J. 164 brought to our notice by the appellant's learned Counsel. However before we part with this point reference has to be made to the decision in Moppen Vava Srank Usmal v. Nariyalwala (1913) 3 T.L.J. 164 brought to our notice by the appellant's learned Counsel. That decision supports the view that the execution Court could enquire into the question of a paramount title set up by the legal representative of a deceased judgment-debtor even when the decree is one directly affecting the property claimed but the view is not supported even by the case the learned judges there rely on Kali Charan v. Jewat Dube (1905) I.L.R. 28 All. 51 related to a case where the legal representative contended that the sale in excess of the share allowed by the decree was not permissible. In that case there was no challenge of the decree at all and hence the case clearly fell within the rule of the decisions which draw a distinction between a decree for sale and a mere money decree. The decision in Seth Chand Mal v. Durga Dei (1890) ILR 12 All. 313, F.B. which was followed in (1905) ILR 28 All. 51 was a case of money decree where the legal representative claimed the property attached in execution as belong to him in his own right. With respect we feel constrained to hold that 1913 (3) TLJ 164 was not rightly decided. 12. As a result of the conclusion we have arrived at on the second point raised by the respondent's learned Counsel it becomes unnecessary for us to consider whether under Ext.1 item 3 was allotted to the appellant and his brother. The objection that the decree could not be executed against the properties allotted in partition to the appellant and his brother is untenable in this proceeding to execute the decree. The appeal has hence to be dismissed and the memorandum of cross objections allowed. We decide accordingly. 13. The appellant's learned Counsel requested that in case we uphold the point raised by the respondent that the objection cannot be entertained in execution, the objection petition may be treated as a plaint as provided by S.47 sub-s. (2) Civil P.C. Considering all the circumstances we cannot accede to that request. To decide whether item 3 was allotted to the share of the appellant and his brother further evidence would seem to be necessary. To decide whether item 3 was allotted to the share of the appellant and his brother further evidence would seem to be necessary. The execution court did not record any finding on the question and what we have in the appellate judgment is only a bald statement that the property pointed out in Ext.1 as identical to item 3 is different in respect of the name, boundaries, survey number and extent. The arguments show that this assertion is open to question. We therefore consider it desirable that the matter should be agitated in a fresh suit if the aggrieved party is so advised. 14. Before we conclude our reasons for the view that the preliminary objection that second appeal is not maintainable cannot be sustained have to be stated. The same point was raised in the Cochin case cited (1124) 40 Cochin 341, but the point was left undecided there. At an earlier stage of the case reported in AIR 1939 Lah.178 Skemp, J. sitting alone had held that the second appeal was incompetent. That decision was reversed in Letters Patent Appeal in Lloyds Bank Ltd. v. Rehmat Bibi AIR 1939 Lah.177. On remand Dalip Singh, J. decided against the decree-holders on the merits. Dalip Singh's decision was reversed in AIR 1939 Lah.178, already referred to. The decision relevant for the present purpose is that reported in A.I.R. 1939 Lah.177. The head-note thereto correctly sets out the reasons given in the decision for the view that in circumstances similar to the present a second appeal would lie and that head note can profitably be quoted here. "If an order passed in execution proceedings decides a question relating to the rights and liabilities of the parties with reference to the relief granted by the decree, it falls within the scope of S.47 and is a decree. But orders that are merely incidental and refer to the conduct of the proceedings are not within the section. The decision, that the executing Court had power to hear the objection application of judgment-debtor under S.47, is an order which finally and conclusively determines, so far as the Court passing such order is concerned, a very important and substantial right which, according to the decree-holder, the Court had no jurisdiction to make. The decision is one of substance and is not an ordinary interlocutory order, or one merely incidental to the conduct of the proceedings. The decision is one of substance and is not an ordinary interlocutory order, or one merely incidental to the conduct of the proceedings. The assumption of the jurisdiction where the Court has no jurisdiction is a decision which can be said to be more important than any other decision except a decision on the merits. It follows that the order is one which is appealable under S.2(2) and S.47, Civil P.C.". 15. This view that if by a wrong assumption of jurisdiction a Court entertains an appeal in a non-appealable matter the party aggrieved by the decision has a right of further appeal is a view which as elsewhere has found favour both in Travancore and Cochin High Courts also. There is no justification to depart from that view or to differ from the Lahore decision referred to above. The preliminary objection is therefore without substance. A contrary decision would as commented upon earlier do greater harm to the respondent, but that however is beside the point. 16. In the result we dismiss the second appeal and allow the memorandum of cross objections preferred by the decree-holder-respondent. The execution court is incompetent to entertain the objection raised to the executability of the decree as against the items specified in the objection petition, and the objection petition is hereby dismissed. As the point on which the respondent succeeds is taken for the first time at the hearing of the second appeal we make no order for costs. Dismissed.